War, Law, and Geopolitical Change
Byers, Michael, International Journal
"Times change and we with time"
-Emperor Lothar I (795-855 CE)
In 1837, the British were crushing a rebellion in Upper Canada, now Ontario. The United States, although unwilling to antagonize a superpower by supporting the rebels directly, did not prevent a private militia from being formed in upstate New York. The "volunteers" used a steamboat, the Caroline, to transport arms and men to the rebel headquarters on the Canadian side of the Niagara River. The British responded with a night raid, capturing the vessel as it was docked at Fort Schlosser, New York. They set the boat on fire and sent it over Niagara Falls.
The incident caused disquiet in Washington. British forces, having torched the White House and capitol building in 1814, were again intervening on US territory. Some careful diplomacy followed, with US Secretary of State Daniel Webster conceding that the use of force in selfdefence could be justified when "the necessity of that self-defense is instant, overwhelming, leaving no choice of means, and no moment of deliberation," and provided that nothing "unreasonable or excessive" was done.1 The British accepted Webster's criteria. Over time, as other countries expressed the same view, the Caroline criteria-often referred to simply as "necessity and proportionality"-were transformed into a new right of selfdefence in customary international law.
In 1945, the drafters of the UN charter included self-defence as an exception to their new, general prohibition on the use of force. In addition to the existing customary criteria, three further restrictions were introduced: 1) a state could act in self-defence only if subject to an "armed attack"; 2) acts of self-defence had to be reported immediately to the security council; and 3) the right to respond would terminate as soon as the council took action.
Despite this attempt at a precise definition, the limits of self-defence still depend greatly on customary international law, in part because the charter refers to the "inherent" character of the right. And so, while the right of selfdefence is codified in an almost universally ratified treaty, namely the UN charter, its parameters have evolved gradually-or at least become more easily discernible-as the result of the behaviour of states since 1945.
In 1986, a terrorist attack on a West Berlin nightclub killed one US soldier and wounded 50 more. Many suspected the attack had been sponsored by the Libyan government. Two weeks later, the United States responded by bombing several targets in Libya. Washington claimed the strikes were legally justified acts of self-defence. Yet the claim was widely rejected, with many governments also expressing doubt as to whether the strike met the "necessity and proportionality" criteria for self-defence. The most significant evidence of the lack of support was the refusal of France and Spain-both NATO allies-to allow their airspace to be used by the planes conducting the raid. The widespread negative reactions meant that the legal claim and associated military action did not succeed in changing international law.
About the same time, the additional question arose as to whether the right of self-defence extended to situations where military responses took place on the territory of countries not directly implicated in terrorist acts. In 1985, Israel claimed self-defence when it attacked the headquarters of the Palestine Liberation Organisation in Tunisia. The security council condemned the action, with the United States abstaining rather than voting against (and thus vetoing) the resolution. A number of governments expressed concern that the territory of a sovereign state had been entered to target not the state itself, but alleged terrorists present there.
The law concerning self-defence and terrorism began to change after bombs exploded outside the US embassies in Kenya and Tanzania in 1998. Twelve Americans and almost 300 other people were killed. United States intelligence sources indicated that al Qaeda was responsible for the attacks. Two weeks later, the United States used cruise missiles to attack terrorist training camps in Afghanistan and a pharmaceutical plant in Sudan.
The United States justified its actions as self-defence and deployed its considerable influence in support of the legal argument. President Bill Clinton telephoned British Prime Minister Tony Blair, French President Jacques Chirac, and German Chancellor Helmut Kohl shortly before the missile strikes and asked for their support. Without having time to consult their legal experts, all three agreed-and made concurring public statements immediately after the US action. As a result of these expressions of support, other countries were more restrained in their response than they might otherwise have been. And the muted response likely contributed to obfuscating the limits of self-defence, rendering the rule more susceptible to change in a subsequent situation.
That situation arose when terrorists attacked New York and Washington on n September 2001. At the time, there were several legal justifications available for using force in Afghanistan. The United States could have argued that the northern alliance had invited it to intervene, American officials could have sought explicit authorization from the security council, or the US government could (perhaps) have claimed a right of humanitarian intervention-since millions of Afghan lives were also at risk from famine. Yet the US chose to focus on a single justification: self-defence.
As a result, the United States found itself in something of a legal dilemma. In order to build and maintain a coalition of countries willing to use force against terrorism, the military action had to comply with the Caroline criteria of necessity and proportionality and focus on the group believed responsible. But if the United States had singled out al Qaeda as its target, it would have run up against the widely held view that terrorist attacks, in and of themselves, do not justify an incursion into the territory of a sovereign state. Most countries are wary of a rule that could expose them to attack whenever terrorists were thought to operate from within their borders. Consider, for instance, the position of Germany after n September 2001: although the city of Hamburg had unwittingly harboured several of the terrorists, few would argue that this alone could have justified a US attack.
The dilemma was overcome by implicating the Taliban who, by giving refuge to al Qaeda and refusing to hand them over, were alleged to have knowingly facilitated and endorsed their actions. In this way, the United States framed its claim in a manner that encompassed action against the state of Afghanistan, without asserting the right to use force against terrorists regardless of their location. This claim was much less of a stretch from pre-existing international law than a claimed right to attack terrorists who were covertly present within another country. For this reason, the claimand the modification of customary international law it entailed-had a much better chance of securing widespread support. And again, the United States deployed its influence to secure support in advance of military action. The collective self-defence provisions of the 1949 North Atlantic treaty and the 1947 inter-American treaty of reciprocal assistance were engaged, and both NATO and the OAS formally deemed the events of September n an "armed attack"-legally relevant language under the self-defence provision of the UN charter. Similarly, security council resolutions adopted on 12 and 28 September were carefully worded to affirm the right of self-defence in the context of the terrorist attacks.
As a result, the right of self-defence now includes action against countries that willingly harbour or support terrorist groups, provided the terrorists have already struck the responding state. The long-term consequences of this development may be significant. Having seized the opportunity to establish self-defence as a basis for military action against terrorists and governments that willingly support them, the United States, and other countries, are likely to invoke it again in circumstances that are less grave, or where the responsibility of the targeted state is less clear. The newly expanded right will, at the same time, diminish the relevance and authority of the United Nations on matters concerning the use of force.
A superpower can exercise considerable influence on international lawmaking, at least when it deliberately and strategically seeks to do so. Yet it is still in its interest to persuade other countries that the change is legitimate and necessary. The following example, of an equally deliberate effort to secure an extended right of pre-emptive self-defence, demonstrates that certain limits exist on the law-making influence of the United States.
In 1981, Israel bombed a nuclear reactor under construction near Baghdad and claimed preemptive self-defence-on the basis that a nucleararmed Iraq would constitute an unacceptable threat. The UN security council unanimously condemned the action as illegal. More than customary international law was at issue, since the UN charter sets out its general prohibition on force before recognizing the right of self-defence, as an exception to that prohibition, "if an armed attack occurs." Under international law, treaties are interpreted in accordance with the "ordinary meaning of the terms" and exceptions are narrowly construed. Applying this approach, any pre-existing right of preemption is apparently superseded by the words "if an armed attack occurs." However, the charter also refers to the "inherent" character of self-defence, and this can be read as implicidy incorporating the pre-existing customary international law of self-defence into the treaty provision. For this reason, it is sometimes argued that preemption is justified when there is a "necessity of selfdefence, instant, overwhelming, leaving no choice of means, and no moment of deliberation"-the Caroline criteria in their full expression. Until 1945, these criteria were widely accepted as delimiting a narrow right of preemptive selfdefence in customary international law. Today, even a narrow right of preemption can only exist if the language of the charter is ignored, reread, or is viewed as having been modified by subsequent state practice. But during the latter half of the 20th century, most of the practice cut the other way.
The United States implausibly justified its 1962 blockade of Cuba as "regional peacekeeping" because it was concerned about establishing a precedent. Israel justified the strikes that initiated the 1967 Six Day War as a response to a prior act of aggression because it did not wish to be seen as an aggressor state. The United States argued that the shooting down of an Iranian airliner in 1988, although mistaken, was in response to an ongoing attack. Countries chose not to claim or condone a right of preemptive action during the Cold War when nuclear missile submarines on hair-trigger alert ensured "mutually assured destruction" if things went wrong. The security council's condemnation of the 1981 bombing of the Iraqi nuclear reactor was but the clearest indication of this thinking.
Today, from the White House, the situation looks quite different. Relations with Russia have improved, no other potential adversary has submarine-based nuclear missiles, and the first phase of a missile defence system is being implemented. In June 2002, President Bush announced a new policy of preemption that extended towards the preventive or even precautionary use of force: "We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."2 The "Bush doctrine" made no attempt to satisfy the Caroline criteria.
Lawyers in the State Department knew there was little chance that the policy, as presented, would achieve the widespread support necessary to change international law. Relatively few countries possess enough of a military deterrence to be able to contemplate a world without the combined protections of the UN charter and the Caroline criteria. Accordingly, the legal claim inherent in the Bush doctrine was reformulated to make it more acceptable to others, and thereby more likely to promote legal change. The national security strategy released in September 2002 explicitly adopted, and sought to extend, the traditional criteria:
For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries.3
The national security strategy took the new policy of prevention or precaution and recast it within the widely accepted, pre-existing framework of customary international law. It did so, first, by omitting any mention of the UN charter, thus implicitly asserting that the pre-1945 customary rule remained the applicable law. It then asserted that imminence now extends beyond threats which are "instant, overwhelming, leaving no choice of means, and no moment of deliberation," and did so within a context that at least suggested the need for legal change-since few would contest that terrorism and WMD are serious problems. Most significantly, other governments were not actually asked to agree to a change in the rule. Instead, all that was proposed was an adaptation of how the (supposed) existing rule is applied in practice. The claim was designed to appear patently reasonable and, as such, deserving of widespread support.
Yet the reformulated doctrine is hardly innocuous. By stretching imminence to encompass new perceived threats, the approach being advocated would create further ambiguity which would, in turn, permit power and influence to play a greater role. Whether or not an imminent threat exists depends in large part on how the factual circumstances are assessed by states. And the ability of the powerful to influence these assessments is considerable, given the various forms of political, economic, and military pressure that can be brought to bear. It is even more considerable when imminence is understood as a broad rather than narrow concept. Under the Bush doctrine, agreement on the existence of an imminent threat would be much more likely when the United States wished to act militarily, than when others wished to do the same. The present law on self-defence would remain generally applicable-available as a diplomatic tool to be deployed against weak states-while more powerful countries would gain greater freedom to act as they choose.
A few regional powers, notably India, Israel, and Russia, responded favourably to the claim set out in the national security strategy, as did Australian Prime Minister John Howard, who suggested that the UN charter be amended to allow for a right of unilateral preemptive action. But Howard's comments sparked angry protests from other southeast Asian states-protests that contributed to reinforcing the current law. Other countries, including France, Germany, and Mexico, expressed concern in more moderate terms while Japan voiced support for a right of preemptive selfdefence but was careful to confine its claim to the Caroline criteria. More recently, it has been revealed that the British attorney general deemed the Bush doctrine illegal in an opinion provided to Tony Blair in March 2003.
This mixed reaction would, in itself, have prevented any change in law of self-defence. As the Iraq crisis escalated, it also contributed to bringing the United States to the UN security council where resolution 1441 was adopted unanimously in November 2002. Although the resolution did not expressly authorize force, it did provide some support for an argument that a previous authorization, accorded in 1990, had been revived as a result of Iraq's "material breaches" of the 1991 ceasefire resolution and, later, resolution 1441. The Bush administration relied on both this argument and preemptive self-defence to justify the 2003 Iraq War, while Britain and Australia relied solely on the resolutions. The advancement of two distinct arguments, with the latter receiving broader support, reduced any effect that the preemption claim might have had on customary international law.
Opposition to the Bush doctrine has mounted. In December 2004, the UN secretary general's high-level panel on threats, challenges, and change, a group of 16 former prime ministers, foreign ministers, and ambassadors, presented its own highly authoritative response:
The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment-and to visit again the military option.
For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.4
The Bush doctrine has failed as an attempt to change the law because of a refusal to pay due heed to the concerns of other countries. However, it has resulted in a degree of legal modification, or at least clarification. Today, much more so than five years ago, it is difficult to find anyone who argues that there is no right of preemptive self-defence. The debates over the significance of "if an armed attack occurs" have been replaced by a general acceptance that a narrow right of preemptive self-defence exists, as it did before 1945, in "cases in which the necessity of that self-defence is instant, overwhelming, leaving no choice of means, and no moment of deliberation." The influence of the single superpower is such that, even when it fails to achieve law-making goals, it leaves a mark on international rules.
A similar pattern, of an unsuccessful effort at legal change resulting in smaller but still significant normative alterations, can be seen in US efforts to justify violating the rights of detainees. According to international humanitarian law-as codified in the four 1949 Geneva conventions-civilians may not intentionally be killed. But civilians can be protected only if a distinction is maintained between them and combatants. This is achieved by offering soldiers the protection of prisoner of war status if captured, as long as they are in a chain of command, wearing a fixed distinctive emblem, carrying their arms openly, and complying with international humanitarian law. Prisoners of war must be treated humanely. They cannot be killed, tortured, used as human shields, held hostage, or used to clear landmines.
In January 2002, the first suspected al Qaeda members were transported to Guantanamo Bay. In the face of widespread concern and the advice of the Pentagon's own lawyers, secretary of Defense Donald Rumsfeld insisted the detainees could not be prisoners of war and refused to convene the tribunals required under the Geneva conventions to determine their status. Even now, more than three years after the war in Afghanistan was essentially over, hundreds of the detainees have neither been charged nor granted access to counsel.
Other violations were also committed against detainees in Afghanistan and Iraq. In November 2001, a prisoner revolt at Mazar-i-Sharif was put down with air-to-surface missiles and 6-52 launched bombs. More than 175 detainees were killed; 50 died with their hands tied behind their backs. In December 2002, the Washington Post reported on the use of "stress and duress" techniques at Bagram air base. In March 2003, the New York Times reported that, while in custody over a three month period, a suspected member of al Qaeda was "fed very little, while being subjected to sleep and light deprivation, prolonged isolation and room temperatures that varied from 100 degrees to 10 degrees."5 That same month, the New York Times reported that a death certificate, signed by a US military pathologist, stated the cause of death of a 22-year-old Afghan detainee at Bagram air base in December 2002 as "blunt force injuries to lower extremities complicating coronary artery disease. "6 The form gave the pathologist four choices for "mode of death": "natural, accident, suicide, homicide." She marked the box for homicide. In July 2003, UN secretary General Kofi Annan reported that his special representative for Iraq had expressed concern to the United States about its treatment of detained Iraqis. One week later, Amnesty International claimed that US forces were resorting to "prolonged sleep deprivation, prolonged restraint in painful positions-sometimes combined with exposure to loud music, prolonged hooding, and exposure to bright lights."7
The reports attracted little attention until March 2004 when CBS television aired photographs showing detainees stripped naked, sexually and culturally ridiculed, terrorized with dogs, and threatened with electrocution. The actions were blatant violations of international humanitarian law and some of them violated the 1984 torture convention, a treaty ratified by the United States.
A memorandum prepared by Bush administration lawyers in March 2003 and obtained by the Washington Post in June 2004 argued that the president was not bound by the Geneva conventions or torture convention, at least insofar as the rules had been implemented in US domestic law. The New York Times reported that then-State Department legal adviser William Taft IV dissented, "warning that such a position would weaken the protections of the Geneva Conventions for American Troops."8
Additional violations were committed when the International Committee of the Red Cross was denied access to some detainees, as reportedly occurred early in 2004. Under the Geneva conventions, the ICRC is mandated to visit and register prisoners of war: this promotes their good treatment and ensures they do not disappear. Although the ICRC traditionally does not publicly denounce governments that fail to uphold the law-in order to preserve its neutrality, thereby ensuring future access to individuals in need-it has, on several occasions since 2001, openly expressed concern about the actions of the United States.
In the same context, a further memorandum obtained by the Washington Post in October 2004 was used to justify the transfer of detainees out of occupied Iraq for more vigorous interrogation elsewhere. Article 49 of the fourth Geneva convention unambiguously prohibits "individual or mass forcible transfers, as well as deportation of protected persons from occupied territory...regardless of their motive."
All this lawbreaking is especially troubling because of its possible longterm effects on existing rules. Other countries might take up the dubious justifications and use them to support their own violations. This is all the more likely because the United States has abdicated its traditional position as the champion of strong protections for both combatants and civilians. Instead of serving as a positive role model, the United States undermines the rules by demonstrating contempt for them. Even in peaceful times, protections for individual human beings rarely rate highly among the principal interests of states. In a world in turmoil after n September 2001, secondary interests are more easily sacrificed, particularly when no country has assumed the positive leadership role left vacant by the United States.
Hegemonic powers have always shaped international law to their advantage. In the 16th century, Spain redefined basic concepts of justice and universality to justify the conquest and subjugation of indigenous Americans. In the 18th century, France developed the modern concepts of borders and the "balance of power" to suit its continental strengths. In the 19th century, Britain introduced new rules on piracy, neutrality, and colonialism, again to suit its interests as the strongest country of the age. In the early 21st century, with the United States at the height of its military powers, some Americans argue for a further lifting of restrictions on the use of force.
Even if the United States could make this change on its own-which it cannot-such an approach would be short-sighted. The United States depends on allies who generally value and abide by international law. On other occasions, it finds it useful to deploy legal arguments when persuading others not to use force themselves. A combined desire for flexibility, constraint, and general compliance is one factor behind the law-making and law-changing efforts of the United States, as seen in several examples above. Even when the United States wishes to act illegally, it usually seeks to justify its behaviour in legal terms, or change the law. It does not generally seek an absence of legal constraints.
The Bush administration has been well placed to modify international law, having inherited almost unprecedented military, economic, and political power. The events of ð September 2001 strengthened their position yet further, generating global concern about terrorism, widespread sympathy for the United States, and caution about being seen to impede its response. The president's advisers took full advantage, applying pressure in pursuit of goals that would normally have been more difficult to achieve. Among these goals has been greater flexibility to use force outside the UN charter, and more leeway in the treatment of detainees. To the degree these law-changing efforts succeed, they will have deleterious effects. Greater flexibility to use force marginalizes the UN, making it more difficult for governments to draw upon that important source of legitimacy. Mistreating detainees squanders moral authority and the capability to persuade. All this diminishes the potential for cooperative, multilateral responses to threats and breaches of the peace-responses that would share the burdens of intervention and reduce the resentments that such interventions feed.
Yet the original rules have proven quite resilient. Today, it is widely recognized that the changes sought would create less rather than more security, and that efforts to stamp out terrorism can serve as a smokescreen for less worthy goals, or at least have unexpected consequences. Even some traditional US allies are now cooperating on specific issues only after carefully considering their best interests, which include a just, strong, equal, and effective system of international law.
It helps that rules, by their very nature, are fairly resistant to change. Indeed, a norm or standard can hardly be considered a rule if it may be altered at the whim of those whom it supposedly constrains. Some rules are more resistant to change, more deeply embedded in the international system, than others. Some of the most resistant rules protect foundational aspects of sovereignty, such as the prohibition on the use of force, or core aspects of human dignity such as the prohibition on torture. For this reason, it could take decades before the full impact of the United States' rise to hegemonic status, together with the paradigm-shifting events of n September 2001, is manifested in the rules governing military force and the treatment of detainees.
The international legal system is also growing more complex, with an unprecedented multiplicity and diversity of actors. During the 19903, academic commentators ascribed considerable significance to the decline of the state and the rise of intergovernmental organizations, transnational corporations, and NGOs. The involvement of these new actors makes the contemporary legal system qualitatively different from before, and more difficult for hegemonic influence to be exercised. At the same time, the impact of these new actors may be of little significance with regard to rules, such as those on military force, that operate in areas where the monopoly of state power remains relatively unchallenged. The need for analytical caution is especially evident when one considers the scale of US military predominance: troops deployed in over 140 countries and a defence budget that comprises 47 percent of global military expenditures. One of the more startling consequences of September n has been the return of the state as the dominant force in international affairs, with security as its central obsession.
Nor is it clear that one should wish to deny significant influence to the United States when it comes to the rules governing military force. The United States has an interest in maintaining a system of widely agreed rules, both to facilitate cooperation and to constrain others, but it is also powerful enough to walk away from the rules or to violate them frequentlyif its particular interests are not taken into account. The international community finds itself in a peculiar position: unable to impose new rules on the hegemon yet able to impede its law-changing efforts, and fully aware that too much intransigence could carry a heavy price. It is important that other countries pay carefully attention to US perspectives and interests concerning the use offeree, while standing firm in defence of existing rules if and when they are unreasonably challenged. Times change, and geopolitics also, but how and when the law changes does still involve an element of choice.
1 R. Y. Jennings, "The Caroline and McLeod cases," American Journal of International Law 32 (January 1938): 82.
2 Remarks by President George W. Bush, 2002 graduation exercise of the United States Military Academy, West Point, New York, www.whitehouse.gov.
3 National security strategy of the United States, 20 September 2002, 19, www.whitehouse.gov.
4 "A more secure world: Our shared responsibility-report of the secretary general's high-level panel on threats, challenges, and change," 2004, 63, www.un.org.
5 Don Van Natta, Jr., "Questioning terror suspects in a dark and surreal world," New York Times, 9 March 2003, A1.
6 Carlotta Gall, "US military investigating death of Afghan in custody," New York Times, 4 March 2003, Ai4.
7 Amnesty International, "The threat of a bad example: Undermining international standards as 'war on terror' detentions continue," Al Index: AMR 51/114/2003, 19 August 2003, http://web.amnesty.org.
8 Neil A. Lewis and Eric Schmitt, "Lawyers decided bans on torture didn't bind Bush," New York Times, 8 June 2004, A1.
Michael Byers is Canada Research Chair in Global Politics and International Law at the University of British Columbia. This essay draws on his recent book, War Law. Understanding International Law and Armed Conflict (Vancouver: Douglas & McIntyre, 2005).…
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Publication information: Article title: War, Law, and Geopolitical Change. Contributors: Byers, Michael - Author. Journal title: International Journal. Volume: 61. Issue: 1 Publication date: Winter 2005. Page number: 201+. © Canadian Institute of International Affairs Fall 1997. Provided by ProQuest LLC. All Rights Reserved.
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